McKinnon v. State

BRICKEN, P. J.

The affidavit upon which this prosecution was predicated was authorized by section 4644 of the Code 1923. The motion to quash and the subsequent demurrers thereto were properly overruled by the court.

The evidence in this case, however, fails to meet the required rule, and in its worst phase creates merely a suspicion that the bottle of whisky found in a path near the defendant’s home belonged to him or was in his possession. There was no evidence tending to connect this appellant with the possession of the contraband liquor, the subject of this prosecution, and, in the absence of evidence to this effect, a conviction for the offense must of necessity rest on suspicion, surmise, or conjecture, and such evidence will not sustain a conviction. Under the whole evidence the accused was entitled to the general affirmative charge requested in writing and refused.

The error of the court in refusing the affirmative charge to defendant necessitates a reversal of the judgment of conviction from which this appeal was taken. It is so ordered.

Reversed and remanded.